Diary of a Start-Up: The IP Minefield

This week I thought I should talk about the various steps that were required to protect not just Safetray as a physical product but also our brand, before we were able to start shouting from the rooftops.

I, like all inventors, had to keep my idea a secret right up to the point of patent application. Non-disclosure agreements (or confidential disclosure agreements) can be acquired from the IPO website and signed by anybody you need to discuss your idea with before you are otherwise protected.

I had several friends try to push me into telling them what I had invented. Facetious guesses ranged from 'cancer-free cigarettes' to 'the wheel' to objects of pleasure not appropriate for inclusion in a business blog.

A visit to ICASS (Innovators Counselling and Advisory Service for Scotland) to meet with Alan Garratt was my first step in learning how to protect my idea and the Safetray brand. A qualified and highly experienced mechanical and production engineer, Garratt was at that time responsible for innovators based in the East of Scotland.

He explained that the four main areas of intellectual property protection are patents, registered designs, trademarks and copyright.

Many innovators make the mistake of opting for the lengthy and highly expensive patenting process without realising the complexities of this system.

The majority of new product designs, no matter how unique and innovative in form, do not fulfil the patenting requirements set out by the UK-IPO (formerly the Patent Office). The four criteria an invention needs to meet in order to secure its patent are that it must be novel, involve an inventive step, be capable of industrial application and must not fall within one of the categories specifically excluded (software, for instance, can be patented in the US but not in the UK).

Several searches through some of the world's most extensive databases of patents assured us that nothing like the Safetray had ever existed. The closest thing to it was a patent from the early-1920s involving a strap nailed to the bottom of a tray.

It filled me with a sense of both pride and wonder to think that nobody had thought to advance the concept for almost ninety years. I ponder now how many other inventions there might be floating around, yet undiscovered and unclaimed, awaiting their recipient's flash of inspiration.

Just the other day, we received a positive report back from the IPO examiner stating that they hadn't found any documents that might hinder our application. It was a relief indeed.

I can't imagine how devastating it must be to plough the best part of a year and all your life savings (and more) into a project only to discover someone on the other side of the world has thought of it two months before you did, but there are numerous instances of that happening since the history of patents began.

Design registration is a cheaper, simpler way to protect a product innovation if the value lies in its appearance rather than its function. It's important to note that you cannot apply for design registration before you apply for a patent - a fact that was thankfully pointed out to me by Alan Garratt. Design registration is particularly useful if your product's distinction from your competitors is visual.

The iPod, for instance, uses technology that was known for many years before Apple produced its version but an instantly recognisable design combined with their weighty brand is what made the product both successful and immediately identifiable.

Which leads me to our branding - quite a project in itself.

With quotes for an outsourced logo design coming in at around a thousand pounds, we decided to combine the creative efforts of myself and Fearsomengine and come up with our own design.

One of the early front runners in our hunt for a logo was of a waiter (we called him 'Logoman') stepping (or running) out of a warning triangle whilst holding a tray.

Although we liked Logoman and chortled inwardly about 'thinking outside of the triangle', we decided that having a warning symbol on our logo might not induce quite the emotional responses we were looking for.

After endless debates and design files being sent backwards and forwards, the font was chosen by Fearsomengine, I then extended the cross in the 't' and placed a bottle and glass on it, and Fearsomengine created an overlap to make it look more contemporary. Using a white logo on a black background was chosen for its impact and ease of use within the hospitality industry.

We were all happy with the result - or perhaps just so sick of discussing it that we had no energy left to even look at other possibilities. Whichever it was, the logo was well received and didn't cost us a penny.

With the logo immediately plastered all over business cards and rapidly handed out at various meetings and events, I worriedly looked out the notes I had taken on trademarks.

One concern I had with registering the logo was whether 'Safetray' would be considered fairly self-explanatory. You can't register a trademark that literally describes the product.

For instance, my journalist friend was joking about inventing a bra for men the other day. If she were to turn her joke into a reality, under the current UK trademark rules she couldn't register 'male bras' for her brand name but she could probably go for 'moob tube'.

You are also prevented from registering a logo with an image that is too descriptive. Our Logoman, for instance, would have ended up being rejected.

A quick call to Alan Garratt assured me that so long as the extended 't' logo was stylised with the bottle and glass on top, it wouldn't matter that it was a safe tray called 'Safetray'.

Just to be sure, I used the IPO's Right Start Examination Service. This service allows you to have your trademark examined before you commit to submitting it. You still pay half the money up front, but it means you won't lose the whole lot if your application is unsuccessful.

I submitted the logo online and heard a few weeks later that it had met the requirements of the IPO. I was delighted.

I would always recommend using a patent attorney for your patent if you think you have a good chance of having it registered, but having learnt the process for trademarks - and receiving invaluable support from Alan Garratt at ICASS - my opinion is that expensive legal support for protecting your logo is unnecessary.

Besides, like a lot of the experiences through the Safetray journey to date, it was more of an adventure to learn how to do it myself.